On "Undercover Brothers," Conscience & Getting Free

By Paul Butler, Associate Dean for Faculty Development & Carville Dickinson Benson Research Professor of Law, The George Washington University Law School

Let's Get Free: A Hip-Hop Theory of Justice is about why locking up so many people is bad for the average law-abiding citizen. It might not be a thesis you'd expect from me, a former prosecutor, but making the streets safer is exactly why I wrote the book.

The U.S. has the highest rate of incarceration in the history of the planet. We have 5 percent of the world's population, and 25 percent of the world's prisoners. Let's Get Free's main argument focuses on the "tipping point" that criminologists have demonstrated about this level of incarceration. When too many people are locked up, the crime rate actually goes up. Too much prison has the ironic consequence of being crimogenic.

Let's Get Free suggests ways that we can safely reduce the number of people in prison. In addition to safer streets, a big advantage would be the diversion of billions of dollars out of locking people up (which costs about $50,000 annually per inmate) and back to more productive areas like education, health care and the environment. The fixes that Let's Get Free recommends range from helping at-risk students graduate from high school, to getting lead out of the environment (a high percentage of the people in prison for non-drug related crimes suffered lead poisoning as a child, which affects their brain in a way that makes them more violence-prone) to ending racial profiling.

The book also includes more controversial recommendations, including strategic jury nullification to protest the war on drugs. Let's Get Free calls for "Martin Luther King jurors" who would consider acquitting defendants in non-violent drug cases, even if the defendant is technically guilty. This kind of protest is perfectly legal, and was credited with hastening the end of alcohol prohibition, the government's last failed "war on drugs."

We know that a public health approach, including treatment for addicts, will get drugs off the street much more effectively than locking up retail level sellers. President Obama has called the practice of locking up non-violent drug offenders "blind and counterproductive." The hope is that strategic nullification might help inspire the President, and state and federal lawmakers, to back up those words with meaningful alternatives to incarceration for non-violent offenders. We all know that the civil rights movement of the 1950's and 1960's was accomplished in part by "creative protest," including civil disobedience.

Of special interest to lawyers and law students is a chapter that asks "Should Good People Be Prosecutors?" The answer is "no." As a young African-American man who had several unpleasant experiences with the police, I became a prosecutor hoping that I could make a difference. I went in as an "undercover brother" who hoped to change things from the inside. Instead, I found, the system changed me.

In researching the book, I interviewed several progressive prosecutors who, like me, became disenchanted with the work. You're not really allowed to use the power that you have in a way that makes a big difference. Your main work, as a line prosecutor, is to put people in prison, and if you seem too uncool with that fact, you start to arouse suspicion.

Becoming a prosecutor to help resolve unfairness in the criminal justice system is like enlisting in the army because you are opposed to the war in Afghanistan. It's like working as an oil refiner because you want to help the environment. Yes, you get to choose the toxic chemicals. Yes, they might let you keep one or two pristine bays untouched. Maybe if you do really good work as a low-level polluter, they might make you the head polluter. But rather than calling yourself an environmentalist, you should think of yourself as a polluter with a conscience.

I call Let's Get Free's progressive ideas about making communities safer and free a "hip-hop theory of justice" because I have learned much from that genre of music. No other form of pop culture does a better job at reminding Americans that we have 2.5 million people in prison, and that families and communities can be destroyed by both crime and punishment. Because the people who create hip-hop come from communities where they are most like to be both victims of crime, and most likely to be accused of crimes, they make up the perfect Rawls "netherworld" to create a better criminal justice system. If we really listen to hip hop, we will be safer and more free.